Claimant's counsel moves to withdraw as counsel for the claimant pursuant to
CPLR 321(b)(2) . The claim filed on November 26, 2002 sets forth causes of
action for medical malpractice which allegedly occurred while the claimant was
an inmate at Wallkill Correctional Facility. After a protracted delay in the
prosecution of this action, the note of issue and certificate of readiness for
trial were filed in July of 2006. By letter dated August 18, 2006, the Court
notified the parties that this case was scheduled for trial on February 26,
2007. On February 9, 2007 movant brought on an order to show cause seeking
permission to be relieved as counsel for the claimant. In support of the
application, movant asserts in an attorney's affirmation that throughout its
representation of the claimant they have experienced "communication problems",
including difficulties in contacting the claimant. Movant also states that
attorney and client have failed to reach "a mutual understanding of the matter
at hand . . . [and] an understanding of a medical malpractice and lawyering
strategy." The correspondence submitted by the movant in support of its motion
(Exhibit D) fails to support the assertion that a lack of communication renders
it unreasonably difficult for the movant to carry on its representation. By
letter dated December 26, 2006 the movant provided the claimant a copy of a
report by the physician who conducted an independent medical examination ("IME")
of the claimant at the defendant's request. By letters dated January 19, 2007
and January 23, 2007 movant recommended that the claim be discontinued based
both on the IME report and examination before trial transcripts of the
defendant's doctors. Movant's most recent letter to the claimant, dated
February 7, 2007, states:

I am sorry that I missed your telephone call this morning and I will try to get
you later in the day.

* * *

As we discussed several times in the past, we have been unable to secure a
medical expert who would be able to contradict the State's medical expert. This
has been reviewed with you on several occasions and at this point in time, it is
too close to trial to hire an expert because the Defendant would have a right to
examine that expert . . . .

None of the letters demonstrate a failure on the part of the claimant to
communicate with counsel. Rather, letters written in late 2005 and early 2006
demonstrate no more than a transient lapse in claimant's response to his
attorney's requests for authorizations permitting the defendant to obtain his
medical records.

In opposition to the movant's application to be relieved as counsel, the
claimant stated:

I was never told that I should/could have medical expertice, [sic] in
fact during that specific phone conversation [on February 8, 2007] was the only
time I was advised either verbally or in letter form that it would be necessary.
It went like this, 'You would need medical expertise to disbute [sic] Dr.
Bentons [sic] dianoses [sic] and expertise, but it's to[o] late
now, for that.' I was shocked all in one breath he said, You need medical
expertice [sic] but it's to[o] late! Why is it, that it's only a one
sided medical report in this medical malpractice lawsuit? [sic]

In reply, movant states that the quote set forth above was taken out of context
and that, in fact, "I was trying to explain to him why a medical expert is
necessary to support his claim and his choice not to retain an expert was
because he could not afford an expert".

In order to terminate the attorney-client relationship "good and sufficient
cause" must be found to exist (Lake v M.P.C. Trucking, 279 AD2d 813, 814
[2001]). Good and sufficient cause exists where there are " 'irreconcilable
differences between the attorney and the client with respect to the proper
course to be pursued in [the] litigation' " (id. at 814, quotingWinters v Rise Steel Erection Corp., 231 AD2d 626, 626 [1996]). This is
consistent with the disciplinary rule for permissive withdrawal (Code of
Professional Responsibility DR 2-110[C]; [22 NYCRR 1200.15(c)(1)]), which states
in pertinent part the following:

[A] lawyer may withdraw from representing a client if withdrawal can be
accomplished without material adverse effect on the interests of the client, or
if:

(1) The client:

(i) insists upon presenting a claim or defense that is not warranted under
existing law and cannot be supported by good faith argument for an extension,
modification, or reversal of existing law.

* * *

(iv) By other conduct renders it unreasonably difficult for the lawyer to carry
out employment effectively.

Movant established that it had some difficulty obtaining authorizations from
the claimant in late 2005 and the early part of 2006. However, upon a review of
the file in this case, it is clear that discovery proceeded uneventfully after
that time, with the deposition of the claimant being completed in May, 2006 and
the IME shortly thereafter. There is no basis on these papers for the Court to
conclude that the claimant's conduct has made it unreasonably difficult for the
movant to carry out its employment effectively (22 NYCRR 1200.15[c][1][iv]).

To the extent that it may be the movant's belief that the case lacks merit
(see 22 NYCRR 1200.15[c][1][i]), it failed to substantiate this assertion
with an expert's affidavit or otherwise set forth that it has consulted with an
expert who opined that no medical malpractice occurred. Absent such a showing,
it would be inappropriate to grant movant's application to be relieved as
counsel (seeLeMin v Central Suffolk Hosp., 169 AD2d 821 [1991];
Rann v Lerner, 160 AD2d 922 [1990]; Kramer v Salvati, 88 AD2d 583
[1982]; cf. Cohen v Tzimas, 135 Misc 2d 335 [1987]).

Based on the foregoing, the movant's application to be relieved as counsel is
denied and the parties will be notified of the date for trial.